Emshwiller v. Tyner
| Decision Date | 01 October 1896 |
| Docket Number | 2061 |
| Citation | 44 N.E. 811,16 Ind.App. 133 |
| Parties | EMSHWILLER v. TYNER |
| Court | Indiana Appellate Court |
From the Blackford Circuit Court.
Reversed.
D. H Fouts, Aaron M. Waltz, W. H. Carroll and G. D. Dean, for appellant.
Enos Cole, Jay A. Hindman, J. A. Bonham and Elisha Pierce, for appellee.
A demurrer was sustained to appellant's complaint in the court below, and this ruling is the error assigned in this court.
The complaint avers that the plaintiff and defendant entered into a written contract by the terms of which the plaintiff agreed to secure, locate and cause to be constructed a canning factory on a certain tract of land in Blackford county; the said canning factory to be used for the purpose of canning vegetables from year to year as the market might demand. Said factory to have a capacity for canning twenty thousand cans per day, and to employ one hundred and forty hands when in full operation; said factory to be ready to operate for the season of 1895.
In consideration of the location of the factory the defendant agreed to purchase one of seventy-four lots; which lots were thereafter to be platted out of the east part of the south half of the northwest quarter of the northeast quarter of section 10, township 23 north, of range 10 east, in Blackford County, Indiana. Also to purchase three shares of the paid-up, non-assessable stock of the Blackford Canning Co., said shares to be of the face value of $ 25 each. And the defendant agreed to pay the plaintiff for said lot and shares of stock, the sum of $ 150 in six equal payments of $ 25 each, due in 6, 9, 12 and 18 months respectively, the notes given therefor to bear the date of the time when said canning factory should be organized.
It is further averred that at the time of making the contract and for a long time prior thereto, the land out of which the lots were to be platted was owned by the Hartford City Building and Paving Brick Co. and was commonly known as the White Elephant Brick Co. land; and that it was agreed and understood by the plaintiff and defendant that the lands which were to be platted were the lands known as the White Elephant Brick Company land, which lands are properly described as the south half of the northwest quarter of the northeast quarter of section 10, township 23, range 10 east, in Blackford county, being all the lands owned by the Building and Paving Company in said county. It is also averred that by the mistake of the typewriter who prepared the contract, and by the mutual mistake of the plaintiff and defendants the lands were erroneously described as first above set out. It also appears from the averments and from the copy of the contract filed with the complaint that the plaintiff's undertaking was that there should be sold seventy-four lots to be platted out of said lands, the lots to be 50 by 120 feet each. The contract also provides that the lots should be distributed or assigned to the purchaser as they might thereafter determine. It is averred that the purchasers met and distributed to the defendant the following described real estate in Blackford county, Indiana, to-wit: Lot No. 7 in Emshwiller and Adams addition to Hartford City. Being a part of the south half of the northwest quarter of the northeast quarter of section 10, township 23 north, of range 10 east, beginning 183.38 feet north and 1,160 feet east of the southwest corner of the above described tract, running thence north 138.9 feet; thence east 50 feet; thence south 138.9 feet; thence west 50 feet, to the place of beginning. It is further alleged that the canning company was incorporated and the factory located, and that the plaintiff fully complied with all the conditions thereof resting upon him; that he caused a warranty deed to be executed, describing the lands as last above set out, and caused the shares of stock to be issued, and that he tendered said deed and stock to the defendant and demanded compliance with said contract on his part; that the defendant refused, and he brought the deed and shares of stock into court to keep the tender good.
According to the statement of counsel the demurrer was sustained because of the insufficiency of the description of the real estate contained in the written agreement.
It is the office of a description to furnish the means of identification. In an executed contract, if the lands cannot be located from the...
To continue reading
Request your trial